The judicial decisions in Hazelwood, Fraser, and Morse do not provide any constitutional protections to students participating in national anthem protests. In all three cases, the Supreme Court carved out narrow exceptions that permit school authorities to censor student speech, none of which are applicable to the type of symbolic speech at issue in national anthem protests.232 For instance, the school-sponsored expressive activity addressed in Hazelwood is distinct from the extra-curricular sporting events at issue in national anthem protests. First, the school-sponsored activity in Hazelwood, a student newspaper, was part of the educational curriculum233 whereas school athletic teams are not a part of the curriculum. Second, the free speech at the center of the controversy in Hazelwood occurred during the regular school day234 whereas high school sporting events typically are held outside of the regular school hours, thereby removing any threat of a material disruption to the school learning environment.
Although some individuals may argue that extra-curricular school athletic events are implicitly part of the educational curriculum—and thus should be analyzed under the aforementioned free speech jurisprudence—
because they are designed to teach values like teamwork, conflict management skills, and responsibility, those sentiments should be rejected adamantly. Student participation in extra-curricular activities, such as football, are voluntary activities in which students do not receive academic credit for participation and thus are outside the scope of Hazelwood.
Furthermore, the performance of students who play on school-sponsored athletic teams are not part of the educational curriculum because their athletic performance is not used to evaluate academic achievement.
Similarly, the Fraser standard is not applicable to national anthem protests because its narrow rule only permits school authorities to censor lewd and indecent speech.235 The symbolic speech students are conveying by kneeling during the national anthem is not lewd or indecent but rather political speech intended to communicate the need to address police
231. See Blad, supra note 19; see also discussion supra Part I.B.
232. See discussion supra Part I.B.; Blad, supra note 19.
233. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988).
234. Id. at 262–65.
235. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).
brutality against black Americans. Likewise, the Morse standard, which established that school authorities may regulate student speech that promotes illegal drug use during school-sponsored events, is distinct from the symbolic speech expressed in national anthem protests because the message is intended to speak out against police brutality, not promote illegal drug use.
The speech-protective standard espoused in Tinker serves as a catch-all for regulating students’ free speech rights in schools because the scope of First Amendment protections in Morse, Frazer, and Hazelwood are so limited.236 Despite Tinker’s speech-protective rhetoric, however, it too falls short of adequately safeguarding students’ First Amendment rights in schools. First, the Material Disruption Standard, as interpreted by the lower courts, gives too much deference to school authorities.237 Scholars like Professor Andrew Miller argue that school authorities have almost unbridled discretion in regulating student speech.238 The expansive deference given to school authorities is problematic, especially in the context of national anthem protests, because it fails to shield students from school authorities using their discretionary power to limit student speech simply because they disagree with the content of the message. For example, the principal of Lely High School in Naples, Florida mandated that students stand during the national anthem or be removed from athletic games.239 Similarly, students choosing to participate in national anthem protests were suspended at Doherty High School in Worcester, Massachusetts.240 Both instances demonstrate how affording school authorities too much deference allows them to engage in viewpoint discrimination, which is prohibited by the First Amendment.241 Thus, in the context of national anthem protests, the Tinker standard serves as a breeding ground for viewpoint discrimination because of the expansive deference given to school authorities. Viewpoint discrimination undermines
236. Bernard James, Tinker in the Era of Judicial Deference: The Search for Bad Faith, 81 UMKC L. REV. 601, 613 (2013).
237. Id. at 615.
238. Miller, supra note 95, at 626.
239. Blad, supra note 19.
240. Cindy Boren, High school rethinks decision to suspend player for national anthem protest, WASH.POST (Sept. 12, 2016), https://www.washingtonpost.com /news/early-lead/wp/2016/09/12/high-school-rethinks-decision-to-suspend-player- for-national-anthem-protest/?utmterm=.f3829cb7a19e [https://perma.cc/M864-9Z YA].
241. Viewpoint discrimination refers to the idea that state actors may not censor speech based on its content or the viewpoint of the speaker. See Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
one of the key purposes of the First Amendment, which is to promote a marketplace of ideas.242
The school environment should be a quintessential marketplace of ideas where students are trained on how to participate actively in democracy through vast exposure to robust exchanges of ideas that challenge and critique existing ideologies.243 This sentiment is captured in a prominent educational theory—“The Open Classroom Model”—in which students are introduced to objective conceptions of diverse perspectives and theories that allow them to critique the validity of the various positions.244 According to this theory, the purpose of education is to equip students with the skills, knowledge, and critical thinking skills to make informed decisions and actively participate in democracy.245 This notion is illustrated in the following quote from Tinker: “Students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.”246 Therefore, student national anthem protests to express opposition to the treatment of black Americans in the United States, particularly by police officers, contribute to the marketplace of ideas regarding minority relations and critique existing practices. The students like Kaepernick are exercising their constitutional right to participate actively in public discourse and the free exchange of ideas. It is illogical to acknowledge Kaepernick’s right to freedom of expression yet allow the State to deny citizens-in-training—students—the same opportunity.
Because school sporting events are open to the general public, it is more difficult for school officials to filter what types of political and social messages students receive from spectators. Therefore, notions of equity demand that students, like sporting event attendees, are permitted the same constitutional freedoms to express themselves freely as long as they are not infringing on the rights of others. Moreover, it is well established in First Amendment jurisprudence that students are considered “persons”
242. Stephen C. Jacques, Reno v. ACLU: Insulating the Internet, the First Amendment, and the Marketplace of Ideas, 46 AM.U.L.REV. 1945, 1949–50 (1997).
243. Keyishian v. Bd. Of Regents, 385 U.S. 589, 603 (1967) (“The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” (citing United States v. Associated Press, 52 F. Supp. 362, 372 (1943))).
244. Deborah A. Churton-Hale, Tinker Goes to the Theater: Student First Amendment Rights and High School Theatrical Productions in Seyfried v.
Walton, 11 HASTINGS CONST.L.Q. 247, 273 (1984).
245. Id.
246. Tinker v. Des Moines Indep. Cmty. Sch. Dist, 393 U.S. 503, 511 (1969).
under the Constitution both in an outside of school.247 Therefore, students should be afforded the same level of constitutional protections as adults to the greatest extent possible. As the Court stated in Tinker, “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”248
Because democracy and free speech are inextricably linked, laws must be developed that safeguard free speech rights in our nation’s public schools. One scholar has supported this notion by stating that “[i]nstead of offering them the government of ‘The Brave New World,’ young people need help to empower themselves. It’s not enough for the coming generation to know old ideas, they must be able to develop their own.”249 This goal can be accomplished only by prioritizing the preservation of students’ free speech rights in K-12 schools and dismantling efforts to stifle the free exchange of ideas. The vigilant protection of First Amendment freedoms is nowhere more vital than our nation’s public schools.250 For these reasons, the current Tinker standard needs to be revamped to better protect students’ free speech rights.
B. Tinker-Spence Standard: A New Constitutional Standard for Free